Behind the Law: The Loopholes in Muslim Personal Law in Bangladesh

Bangladesh has a religiously diverse population comprising Muslim, Hindu, Christian, Buddhist, and other communities. The emergence of Bangladesh as an independent and sovereign democratic republic in 1971 significantly reshaped the political and constitutional landscape of the Indian subcontinent. Following the dissolution of Pakistan, Bangladesh emerged as a distinct state and initially embraced secularism as one of the fundamental principles of its constitutional framework.

The legal framework governing personal status in Bangladesh has its roots largely in legislation introduced during the British colonial period and subsequently retained in Pakistan after 1947. Following independence, Bangladesh introduced significant legislative and institutional developments that have gradually shaped its contemporary personal status regime. Despite these developments, religious personal laws continue to play an important role in regulating matters such as marriage, divorce, maintenance, guardianship, and inheritance.

Among the Muslim population, the Hanafi school of Islamic jurisprudence has traditionally been the predominant school of thought. Muslim family matters are governed by a combination of Islamic personal law, statutory provisions, and judicial decisions. Religious norms and customary practices continue to influence family relations, although disputes are adjudicated through the formal judicial system.

Bangladesh has a unified judicial structure in which the regular courts exercise jurisdiction over personal status disputes. Although different religious communities may be subject to distinct personal laws and statutory regimes, Family Courts generally serve as the courts of first instance for family-related disputes. This legal framework reflects the complex relationship between constitutional secularism, religious personal laws, and the formal administration of justice in Bangladesh.

Muslim Personal Law (Shariat) Application Act, 1937 has clearly mentioned the scope of application of sharia law in Bangladesh. According to section 2 of the Act, Islamic sharia law will govern only 10 matters. It has also restricted the application of the law only among the parties who are Muslims. Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 says:

Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat ,maintenance, dower, guardianship, gifts, trusts and trust properties, and waqfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Major loopholes and problems in Muslim Personal Law in Bangladesh:

There is always a risk of uncodified law in this country. As of yet, no action has been made to resolve conflicts between personal laws and the Constitution. The Constitution’s Parts I and II, which deal with basic rights and state policies, contain articles that guarantee gender equality in public life but say nothing about it in private. Although all citizens, regardless of faith, are subject to the Child Marriage Restraint Act of 1929, which set the minimum age for marriage at 21 for males and 18 for women.

Muslim Family Law Ordinance, 1961: On the basis of Marriage and Family Laws Commission published in June 1956, President Ayub Khan adopted Muslim family Law Ordinance 1961. Accordingly, in March 1961 he promulgated the Ordinance. According to Ayub Khan, the commission’s recommendations merely provided a significant legal framework for the application of Islamic family rules rather than straying outside the bounds of Islamic jurisprudence. Because he is a Muslim and the leader of an Islamic state, he thought it was his responsibility to create policies that would promote the welfare of the populace. As a result, he opted to follow the commission’s recommendations. But it has some major contradiction with Sharia. It has a lot of problematic sections related with marriage, divorce, inheritance etc. For example we can take section 7 of the MFLO 1961. This section has big contradiction with the concept of “Tuhr” in Sharia law. According to Sharia, lunar month or three period of a woman should be taken in consideration, but according to the section 7(3) of the MFLO it is counted by 90 days. It is clear violation of Quran. On the other hand, according to the national statute, marriage is counted from the day when it is held, but talaq is not counted from the day when it is given, it is not effective until the expiration of 90 days from the day on which notice is delivered to the chairman.

Registration: Statutory laws which are regulating Muslim marriage registration in Bangladesh are also anomalous and to some extent unconstitutional. According to section 3 of the Muslim Marriages and Divorces (Registration) Act, 1974 every marriage solemnized under Muslim law shall be registered. But registration is not the main element of a Muslim marriage. On the other hand, section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, 10 matters will be govern according to Islamic Sharia law in which marriage is one of the 10 matters. Registration is not an element of valid marriage but according to the 1974’s Act registration is mandatory to be a valid marriage which is not compliance with 1937’s Act. In addition, according to the section 5(2) of the Muslim Marriages and Divorces (Registration) Act, 1974 to register marriage, it is the duty of the bridegroom to report to the Nikah Registrar within 30 days. There is no obligation for the bride to register marriage. Also it is punishable offence for the bridegroom to not register the marriage. It is totally the violation of equality before law under the article 27 of our constitution. Some people are of the opinion that it is positive discrimination; otherwise, the bride may also have to face punishment. But the law should keep at least the provision for the bride to register her marriage, and non-registration will not give her any punishment.

Marriage: Though marriage is an important institution of society, and Muslims have some rules that have to be followed during marriage, there is no definition of marriage in any statute.

Women’s Capacity: Some of the statutory law is not only in conflict with sharia but also backward in nature from sharia. One of these sections is Section 2(vii) of the Dissolution of Muslim Marriages Act, 1939. According to the section, if a girl is given in marriage by her father or other guardian before the age of 18, she can repudiate it before the age of 19, and marriage can’t be consummated. Here, the concept of adulthood is conflicting. Because according to Sharia, puberty comes before the age of eighteen. The word should be “before attaining puberty or adulthood” instead of “age eighteen.” Some people may argue that it is problematic to determine puberty. That’s why it is considered eighteen. But one problem can’t be solved by solving another. Medical science can be used here. On the other hand, forced marriage of an adult woman is prohibited in Islam, but for this section, there is a chance to give force marriage to an adult woman who is not an adult according to the statute.

Judicial Khul: Judicial khul is a unique court authority that is incredibly beneficial to women. If the woman petitions the court for dissolution on the grounds that the continuation of the marriage might eventually end in their transgressing Allah’s bounds, the court may allow dissolution upon payment of a monetary settlement by the wife to her husband. But no national statute of our country has the provision regarding judicial khul and people of our country don’t know the concept clearly. For this reason, women who didn’t get power of talaq by Nikahnama column 18, they don’t know that they have another option to get divorce from their husband.

Inheritance: According to the Muslim Personal Law (Shariat) Application Act, 1937, property of a Muslim deceased person will be distributed according to the sharia. But people have hardly any knowledge about Bangladesh’s having a law which allows inheritance right to be guided under Sharia law. Moreover the inheritance law under MFLO 1961 created a lot of contradictory provisions with Sharia such as doctrine of representation. Deprivation of women from their inherited property specially from their father’s property is common in our country, which is a sinful act under sharia law. But there is no codified punishment for this act in our statutes. So, punishment must be prescribed for such act. So, codifying such provision is a must.

The preceding discussion demonstrates that, although the courts in Bangladesh have introduced a number of significant legal developments over time, the fundamental principles of classical Muslim law have largely remained intact. The judiciary’s engagement with traditional Muslim law reflects a sustained effort to interpret and apply these principles within the changing social and legal context of Bangladesh. In certain instances, the courts have sought to develop Muslim family law by incorporating broader considerations of social welfare, fairness, and equality before the law. These judicial developments illustrate the continuing interaction between traditional legal principles and contemporary notions of justice and social reform.

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